Nebraska Facebook abortion case: Baby was reportedly 29 weeks, 5 days old boy

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More details are coming out in a Nebraska case where authorities are relying on private Facebook messages to claim that a mother helped her teenage daughter with an illegal abortion. Among those details: The baby in question is reportedly a boy who was 29 weeks and 5 days old.

Nebraska law bans most abortions after 20 weeks. 

Court documents and police allege that Jessica Burgess of Norfolk, Nebraska, helped her then 17-year-old daughter earlier this year obtain abortion pills — an abortion method approved by the U.S. Food and Drug Administration (FDA) for use of up to 10 weeks in pregnancy. According to police, the two then buried the baby’s remains multiple times and may have even attempted to burn the baby’s body.

CNA is withholding the name of the teenager, who is now 18, because she was a minor at the time of the baby’s death.

The case initially sparked a backlash from abortion activists against Facebook for letting police access the messages amid growing concerns about tech privacy following the Supreme Court’s decision in June overturning Roe v. Wade, which legalized abortion nationwide. The incident happened in April, two months before the court’s decision. 

According to documents filed in Madison County Court, the investigation began due to concerns that a teenager gave birth prematurely to a stillborn child. Then, police came across Facebook messages that suggested the baby’s death was intentional.

Norfolk Police Detective Ben McBride obtained a search warrant for the messages of the mother and daughter after his suspicions were aroused when he said he saw the teenager check her Facebook Messenger account to confirm with him the exact date that she lost her baby (April 22, 2022). With the warrant in hand, McBride then said he secured messages between the two discussing certain pills and “burn[ing] the evidence.”

Now, the state of Nebraska is charging the mother and daughter for mishandling human remains (a felony), concealing a death (a misdemeanor), and providing false information (a misdemeanor).

The mother is also charged with abortion-related felonies: performing an abortion without a medical license and performing or attempting to perform an abortion on an unborn child 20 weeks after conception.

A not-guilty plea was made on the mother’s behalf, while the daughter pleaded not guilty.

On Aug. 29, Joseph M. Smith, a Madison County attorney representing the state of Nebraska, filed motions requesting that the Madison District Court determine the admissibility of certain evidence.

For the cases involving both the mother and the daughter, he asked the court to consider the qualification of Dr. Erin Linde — a medical doctor he said was board certified in clinical and anatomical pathology — as an expert witness. This doctor performed the autopsy on the baby, he said.

“Dr. Linde will testify the baby she examined was human with a gestational age of 29 weeks and 5 days of delivery,” the motion reads, “and that post mortem measurements show gestational age t[o] be between 28 and 32 weeks.”

The evidence he listed included photos by law enforcement of the baby remains that were found. For evidence in the mother’s case, he also listed “a video taken by law enforcement as the body of the baby boy was recovered.”

Smith also asked to use as evidence testimony and records of a hospital exam on March 8. Those records would include, he said, the printout of relevant monitors including the heart rate of the baby and photos or video from the ultrasound.

The daughter appeared in court for a pre-trial hearing on Monday. Her next hearing is scheduled for Sept. 26. The mother will appear in court for a pretrial hearing on Friday.

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